[2021] FWCFB 4746

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009
s.156—4 yearly review of modern awards

4 yearly review of modern awards—Social, Community, Home Care and Disability Services Industry Award 2010
(AM2018/26)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER LEE

MELBOURNE, 4 AUGUST 2021

4 yearly review of modern awards – Social, Community, Home Care and Disability Services Industry Award 2010

[1] On 4 May 2021 the Commission issued a decision 1 in relation to the Tranche 2 claims in the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award) (the Decision). Interested parties were initially directed to file any submissions and evidence in respect of the draft variation determination and the Full Bench’s provisional views by4.00pm (AEST) on Tuesday 22 June 2021.

[2] In a Statement published on 16 July 2021 2 we agreed to vary the directions such that interested parties were to file any submissions and evidence in respect of the draft variation determination and our provisional views by4.00pm (AEST) on Tuesday 27 July 2021. The Hearing was listed for 6 August 2021.

[3] Interested parties were to file any submissions and evidence in respect of the draft variation determination and our provisional views by no later than 4pm, Tuesday 3 August 2021.

[4] The matter is listed for Hearing on Friday, 6 August 2021 at 9.30am.

[5] On 3 August 2021 we received correspondence from Australian Business Lawyers on behalf of a number of employer and union parties. The parties jointly requested that the issues relating to remote response and damaged clothing be dealt with separately and not be subject to the direction to file written submissions by 4pm that day. In a Statement published on 3 August 2021 we granted that request and issued the following directions:

1. A further Conference to be listed in the week commencing 9 or 16 August 2021 (time to be confirmed during the hearing on 6 August 2021).

2. Parties are to exchange any further proposals in respect of remote response or damaged clothing prior to the Conference.

3. Parties file any submissions and evidence in respect of remote response and damaged clothing by 4.00PM on Wednesday, 25 August 2021.

4. A hearing be listed for a date convenient to the Commission on or after Wednesday, 1 September 2021 (to be confirmed during the hearing on 6 August 2021).

5. The parties have liberty to apply.

[6] Submissions have been received in respect of the provisional views and draft variation determination from the following interested parties:

• The Australian Services Union

• The United Workers’ Union

• The Australian Industry Group

• National Disability Services

• The Australian Federation of Employers and Industries

• Australian Business Industrial

• Health Services Union

• Australian Unity Submission

• Australian Community Industry Alliance

• Home Care Assistance

• Includa

• Fighting Chance Australia

• ZestCare

• HireUp

• Australian Association of Private Nursing Services

[7] Witness Statements were filed by Ai Group and AFEI:

Ai Group

• Aleysia Leonard

• Christopher Chippendale

• Christopher Nillsen

• Craig MacArthur

• Richard Cabrita

AFEI

• Kylie Lambert

[8] Any interested party who wishes to cross-examine any of the witnesses set out at [13] above are to advise [email protected] in writing by no later than 12 noon on Thursday 5 August 2021.

[9] Ai Group has also made an application for a confidentiality order in respect of its witnesses. The application relates to each of the witness statements filed by Ai Group in these proceedings. Any party opposing the application for a confidentiality order is to advise [email protected] by no later than 12 noon on Thursday 5 August 2021. In the absence of any opposition we will grant the application for a confidentiality order. In the event that Ai Group’s application is opposed we will hear and determine the matter at the commencement of the hearing on 6 August 2021.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2021] FWCFB 2383.

2 [2021] FWCFB 4196.

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Education Union (AEU) sought a review of the Social, Community, Home Care and Disability Services Industry Award 2010. The AEU argued that the award should be adjusted to better reflect the current economic conditions and the increased costs associated with providing social, community, home care, and disability services. The Fair Work Commission was tasked with determining whether the award should be amended and, if so, what those amendments should entail.

The primary legal issue before the Fair Work Commission was whether the existing award adequately compensated employees for the work they performed within the social, community, home care, and disability services industries. The AEU argued that the award did not adequately account for the increased costs and complexities associated with these industries, leading to underpayment of workers. The Fair Work Commission needed to assess whether the current award was fair and appropriate, taking into consideration economic factors, changes in industry standards, and the cost of living.

In its decision, the Fair Work Commission found that while the award was generally fair and appropriate, certain aspects required adjustment to better reflect current economic conditions. The Commission acknowledged that the industries in question had experienced increased operational costs and complexities. However, it also recognised the financial constraints faced by employers, particularly smaller organisations. The Commission ultimately decided to make several amendments to the award, including adjustments to various penalty rates and the introduction of new loadings for certain types of work. These changes were intended to provide a more equitable balance between the needs of employees and the financial realities of employers.

The Fair Work Commission's final orders included specific amendments to the Social, Community, Home Care and Disability Services Industry Award 2010. These amendments aimed to address the concerns raised by the AEU and ensure that employees were fairly compensated for their work. The new award included revised penalty rates, additional loadings for certain types of work, and other adjustments designed to better reflect the current economic environment and the needs of both employees and employers.

4 yearly review of modern awards—Social, Community, Home Care and Disability Services Industry Award 2010

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established